Friday Think Piece: Lessons of the Law

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Jaybird
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    says:

    Back in the heady days of Republican dominance, I was on Redstate (full disclosure: they banned the crap out of me).

    Whenever someone said “you can’t legislate morality”, it always got the same response: (paraphrased) We can legislate against murder, can’t we? We can legislate against rape, can’t we??? So *OF COURSE* we can legislate morality!

    Never you mind that this came up in a discussion about moving Marijuana to Schedule II.

    In any case, I’ve always interpreted “you can’t legislate morality” as a poorly phrased way to say “you cannot legislate matters of taste as if they were matters of morality” or even “you cannot legislate matters that are arguably matters of taste or borderline cases as if they were matters of morality”.

    To get all libertarian nutball, this isn’t just limited to beer and weed and 2 Live Crew, but abortion, gambling, prostitution, and most things that elicit an “ick” response from decent WASPs like us.

    Once you start saying stuff like “well, maybe here or there, when you or I do it responsibly, it doesn’t harm society but we wouldn’t want *EVERYBODY* doing it… so we make it illegal and you and I can be hypocrites in the privacy of our own home because we can handle it even as we know that everybody else out there can’t”, the next thing you know you’ve got something like the WoD… which will eventually be compared to Prohibition by people who aren’t libertarian nutballs.Report

  2. Avatar Mike Farmer
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    I think that “You can’t legislate morality” means that unless morality is freely chosen it’s not moral, simply adherence to a law. Behavior modification is quite different from a freely chosen moral code. Not everyone re-assesses value-judgements which may have developed from behavioral control, or cultural influence or unbringing, but those who do reassess value-judgements in maturity become more fully human and moral by discarding what they no longer believe in and embracing what they choose as moral. Obeying laws doesn’t make me a moral person, just a law-abiding citizen, unless I chose the moral code as my own and choose to behave this way even in circumstances when the law might be irrelevant.Report

  3. Avatar gregiank
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    I think law always has a moral component. Not in the details of whether the amount of blood alcohol for a DUI is .08 or .1 but in its basic principals. The belief that every person should have equal access to the law is many things but it is a moral belief and certainly one that has not always been shared. Moral principles underlay our Constitution and the laws that flow from it.

    Bouncing off Mike’s point, which i agree to a degree, people are formed by the society we live in. The laws we have are part of what help us grow up from children. Humans are social creatures and our development is always deeply affected by our families and communities. That’s psych 101. The laws, institutions, etc all shape us as we grow.

    I would likely agree humans have a tendency towards prejudice, but i think more than that we are, as i said, social creatures. You can talk about rugged individualism ( as opposed to pathetic loner individualism i guess) all you want, but community matters. When , as Hayek suggests, you tell people their success is all about their own hard work that also leads to a nasty flip side where if you are unemployed or poor its obviously because you are bad and lazy. There is a strong tendency in Americans to be morally judgmental, among conservatives that often comes out as the poor deserve it because they are bad people. I’m sure Calvin would be happy about that.Report

    • Avatar Jaybird in reply to gregiank
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      says:

      @gregiank, the problem with relying on a moral core of people to guide the sheeple to enlightenment is that it can lead to such things as marriage being defined as “one man and one woman”.

      Which, as enlightened folk like you and I know, is completely immoral.Report

      • Avatar gregiank in reply to Jaybird
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        says:

        @Jaybird, oy……whatever.

        Did i say that? Really i don’t know how to respond. Do you really think the constitution is embedded with moral/ethical principles?Report

        • Avatar Jaybird in reply to gregiank
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          says:

          @gregiank, it has pretensions of such.

          “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

          When you get to the first 10 Amendments, you wouldn’t believe the preening you see in there.Report

          • Avatar gregiank in reply to Jaybird
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            says:

            @Jaybird, right and many basic precepts we take as a given or precepts dearly held by libertarians or liberals or conservatives are moral/ethical ideas. You can’t escape it , you can only ignore it.

            I can see a distinction between general moral principles and specific laws targeting specific behaviors. Prohibition was a specific set of laws aimed at a behavior. The constitution is set of principles. The specific laws are a lot less likely to work in creating morality or stopping “immoral” behavior.Report

            • Avatar Jaybird in reply to gregiank
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              says:

              @gregiank, there are tons of moral theories and, sure, many of them are based upon such things as “God Said So”.

              If you are crazy enough to believe that it is possible to weigh moral theories against each other based on actual reason (e.g., that the belief that women are moral agents in their own right and not property isn’t necessarily as arbitrary a rule as taboos against pork products), you get to start having to argue such things as the importance of forcing other people to act morally.

              And, of course, reach the conclusion that, hey, it’s different when *I* do it.Report

    • Avatar Mark Thompson in reply to gregiank
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      says:

      @gregiank,
      “I would likely agree humans have a tendency towards prejudice, but i think more than that we are, as i said, social creatures. You can talk about rugged individualism ( as opposed to pathetic loner individualism i guess) all you want, but community matters. When , as Hayek suggests, you tell people their success is all about their own hard work that also leads to a nasty flip side where if you are unemployed or poor its obviously because you are bad and lazy. There is a strong tendency in Americans to be morally judgmental, among conservatives that often comes out as the poor deserve it because they are bad people. I’m sure Calvin would be happy about that.”

      I’m not quite sure how, but when I read this, the first thing that came to mind was this piece, which seems oddly relevant to your point, in addition to being an entertaining read (well, at least to me): http://soccernet.espn.go.com/world-cup/blog?entryID=5362688&name=offtheball&cc=5901&ver=us

      Holland is a small nation that has nonetheless developed a tradition of consistently turning out some of the finest soccer talent in the world. It also has a tradition of self-destructing whenever its players have to work together, a big reason why they’ve never won the World Cup (I’ll be rooting for them on Sunday, though Carlos Puyol’s hair may make me change my mind).Report

      • Avatar greginak in reply to Mark Thompson
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        says:

        @Mark Thompson, That was good stuff. Its an odd thing about perception. The Netherlands has had football success out of proportion to their size. They have had more succsess then you would think, but end up with a rep as a team that falls apart. Sort of a can’t win for losing kind of thing. Its really really hard to get a handle on national personalities since its so hard to be remotely objective. Certainly any thought that the American national character is less then super duper exceptional is impossible to swallow. I’m not sure how but we seem to have a staunchly individualist and busy body dual nature. That is a funky ying yang.

        I’ve wondered at times about how some college sport programs seem to have enduring personalities or themes over the course of decades. I’ll be rooting for the Dutch also.Report

      • Avatar Michael Drew in reply to Mark Thompson
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        says:

        @Mark Thompson, Off the Ball is some of the best sports commentary — commentary of any kind, really — that I know of. Have you been listening to the podcast, Mark?Report

  4. Avatar gregiank
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    says:

    ur… is should be isn’t.Report

  5. Avatar gregiank
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    says:

    @jaybird-I really don’t think you are getting what i’m saying. I’m not comparing anybodies morality. I think every political philosophy has an embedded moral framework. Even yours does, you just seem to want to believe you are above that. The libertarian concept of non-coercion is profoundly moral. But even that belief would be a serious infringement on the communitarian ideas many people hold.

    You are weighing values and morals about what is right and not right for a government or people to do. America is about as individualistic as a country has ever been. Many people, perfectily happy and content people, live in socities where is is accepted that you have to live up to others standards or that the community has a huge amount of say over your life ( think Japan or muslim countries). Now you and I would mostly likely not feel comfortable with that, but I am not willing to say those people are not moral or decent even though their values are far more communitarian then is typical in America.Report

  6. Avatar gregiank
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    says:

    I was referring to the quote for Hayek that Jason provided. I was providing an unpleasant example of where the logic of Hayek’s thought can lead to. I noted that Americans are often judgmental providing an example of how conservatives do that. No that response was really and truly not about my morality being better then somebody else.Report

  7. Avatar Rufus F.
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    says:

    1. For the record, I just now noticed this post, after having just posted something on libertarians and whether they worry too much about the authoritarianism of people who disagree with them. I was actually thinking of myself there and wondering if I do that.

    2. I’m wondering about this: “In the evolutionary history of mankind, gains from trade with strangers were generally few and rare.” Is this true? Certainly it seems like it would be. But there is also an inborn taste for novelty, isn’t there? Also, to use the crude example, isn’t there a sexual attraction to outsiders?Report

    • Avatar greginak in reply to Rufus F.
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      says:

      @Rufus F., I’m wondering about this: “In the evolutionary history of mankind, gains from trade with strangers were generally few and rare.”

      Actually i thought this was an at best unprovable statement and most likely false. There is physical proof of trade networks going back for thousands of years on almost every continent ( i’m not sure about Australia, but there is on the others). there was also likely breeding between Cro-magnon and Neanderthals. If there weren’t gains it seems odd that it would be so commonReport

      • Avatar Jason Kuznicki in reply to greginak
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        says:

        @greginak,

        We do have evidence of ancient trade networks, but one of the reasons we have this evidence is because such trade took place in relatively more durable, usually luxury, goods — like gold, silver, or ivory. But this trade, while its evidence is of a kind that lasts to the present, also made up a tiny fraction of any ancient economy. Less durable items, including food and clothing, would have been the overwhelming majority of those same economies, and as a rule, they were almost never traded at distance. We would know if they had been, because we would at least see more evidence of the methods used to transport them. We’d find more very ancient roads, ships, shipping records detailing grain transport, and the like. We just don’t see these in the quantities that would be needed for this trade to take place on any scale.

        To use a very late example, the international grain trade of the Roman Empire was exceptional and not repeated again for centuries. Its collapse was one of the key factors in the fall of the empire itself. And before writing, such trade was even more difficult.Report

  8. Avatar BSK
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    says:

    Well, lets think about what the term legislate means. One definition would be to promote or restrict through law. So, can morality be promoted or taught? Or is it inherent? If it can be promoted/taught, then presumably, it can be legislated. The problem is that by the time such legislation is applicable to an individual, much of their moral development is done. And applying laws to people most impressionable morally (children) is a bit extreme. So, in abstract, yea, I suppose you COULD legislate morality. But would it work in any way we’d deem acceptable? Hardly.

    Now, SHOULD we be promoting morality? That’s where it gets tricky, because there is still no agreed-upon definition of morality. Ultimately, whatever group is providing the ‘education’ (putting it in quotes to designate both formal education and informal education), which may include parents, the government, administrators, parent groups, etc, etc, etc, needs to choose the values they want to promote and, presumably, that would include morality. But there is no doubt that morality can be taught.

    As Dewey said, is it purely coincidental that Russia has so many more Communists than America? Or were Russians taught (indoctrinated, in his language, though it didn’t carry the same stigma that term does today in education circles) the morals and values that leads one to concluding the Communism is good and desirable and Americas were taught the morals and values that leads on to concluding that Democracy and Capitalism are good and desirable? Obviously, it doesn’t ‘take’ the same way for everyone, but I’m apt to conclude that the cause was not simply chance.Report

  9. Avatar BSK
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    says:

    Oi, re-reading my post, it was pretty sloppy. My point was that I DO think morality can be legislated, to the extent that actions can be taken to impact the development of morality and if these actions are achieved through legal maneuvering, you’ve managed to legislate morality. The issue comes down to how effective it is and how appropriate it is. But as Dewey (and others) demonstrated, moral development is at least partially determined by environment.Report

  10. Avatar Michael Drew
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    says:

    Morality certainly is not entirely distinct from law’s motivation, intent, or effect, but I think we err if we make morality too much the lens through which we view lawmaking and enforcement.Report

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